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May 10, 2023: COMPASSIONATE RELEASE, COVID-19, and BOP BLOG


Fast Facts (Full BOP stats can be found here)


Confirmed active cases at 45 BOP facilities and 6 RRCs

Currently positive-testing inmates: 240 (down from 246) Currently positive-testing staff: 26 (up from 25) Recovered inmates currently in BOP: 43,809 (down from 43,850) Recovered staff: 15,281 (unchanged)


Institutions with the largest number of currently positive-testing inmates:

Yazoo City Low FCI: 133 (down from 136)

Alderson FPC: 49 (unchanged)

Yazoo City Medium FCI: 7 (unchanged)


Institutions with the largest number of currently positive-testing staff:

Forrest City Low FCI: 3 (unchanged)

Alderson FPC: 1

Berlin FCI: 1


System-wide testing results: Presently, BOP has 145,307 federal inmates in BOP-managed institutions and 13,389 in community-based facilities. Today's stats: Completed tests: 128,637 (unchanged) Positive tests: 55,285 (unchanged)


Total vaccine doses administered: 350,240 (up from 350,234)


Case Note: Court grants defendant compassionate release to care for daughter even after staying initial grant upon learning of defendant's recent disciplinary infractions...


In U.S. v. MARCUS PIZZOLA, 2023 WL 3321682 (S.D. Ind. May 9, 2023), the court granted defendant's motion for compassionate release to care for his 16-year-old daughter after staying its initial grant when it learned defendant had incurred recent disciplinary infractions relevant to his motions, explaining: "Defendant Marcus Pizzola requests compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). Dkts. 118, 125. Mr. Pizzola asks the Court to reduce his sentence to time served. In response to Mr. Pizzola's motions, the United States initially filed a stipulation in which it stated that "having considered the unique circumstances presented in the defendant's motion and the factors set forth in Title 18, United States Code, Section 3553(a), the government does not oppose the defendant's motion." Dkt. 128. Thereafter, the Court received information suggesting that Mr. Pizzola had incurred recent disciplinary infractions relevant to his motions. Dkt. 131. The Court stayed its order granting Mr. Pizzola's release and ordered supplemental briefing. Dkt. 132. In its supplemental briefing, the United States now opposes Mr. Pizzola's release due to his failed drug tests and expulsion from the prison's Residential Drug Abuse Program. Dkt. 137. The Court has considered the circumstances surrounding the recent infractions. See dkt. 132. For the reasons stated below, the Court's previously imposed stay, dkt. 132, is lifted and the BOP shall release Mr. Pizzola as detailed in this order.


I. Background In 2015, Mr. Pizzola pled guilty to one count of conspiracy to possess with intent to distribute and distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846 & 841(a)(1). Dkts. 55, 56. The Court sentenced him to 132 months of imprisonment, to be followed by a 5-year term of supervised release. According to the Bureau of Prisons' inmate database, Mr. Pizzola's projected release date (including good time credit) is now August 2, 2023. https://www.bop.gov/inmateloc/ (last visited May 9, 2023).

II. Discussion The general rule is that sentences imposed in federal criminal cases are final and may not be modified. 18 U.S.C. § 3582(c). Yet, under one exception to this rule, a court may reduce a sentence "after considering the factors set forth in [18 U.S.C. § 3553(a)]2 to the extent that they are applicable," if it finds that there are "extraordinary and compelling reasons" that warrant a reduction. 18 U.S.C. § 3582(c)(1)(A)(i). The Seventh Circuit has held that a court has broad discretion in determining what constitutes "extraordinary and compelling reasons" under the statute. United States v. Gunn, 980 F.3d 1178, 1180–81 (7th Cir. 2020). The court must "consider[ ] the applicant's individualized arguments and evidence," United States v. Rucker, 27 F.4th 560, 563 (7th Cir. 2022), but ultimately, "[t]he movant bears the burden of establishing 'extraordinary and compelling reasons' that warrant a sentence reduction." United States v. Newton, 996 F.3d 485, 488 (7th Cir. 2021). Mr. Pizzola is seeking immediate release in order to care for his 16-year-old daughter. According to records and a declaration provided by Mr. Pizzola, his minor daughter has been in the custody of his parents. Dkt. 125-1. Recently, both of Mr. Pizzola's parents passed away. Id. Mr. Pizzola states that he is the only available caretaker for his daughter and if he is not released, the Department of Child Services may place her in foster care. Id. The United States does not dispute that the need to care for Mr. Pizzola's daughter is an extraordinary and compelling reason potentially warranting compassionate release in this case.3 Mr. Pizzola is 44 years old, has a plan to obtain employment and has a place for both his daughter and him to live if he is released because he has inherited his parents' home. Dkt. 125 at 7; dkt. 118 at 4. Mr. Pizzola has three prior felonies, which are all more than a decade old and none of them involved violence. Dkt. 47. At this juncture, Mr. Pizzola has served more than 97% of his sentence and is scheduled to be released in less than three months. The Court has considered that Mr. Pizzola recently tested positive for buprenorphine and norbuprenorphine and was expelled from the Residential Drug Abuse Program (RDAP). Dkts. 137-2, 137-3, 137-4. Still, he has completed 40 hours of substance abuse treatment through RDAP, dkt. 125 at 7, and acknowledges that he needs continued treatment. Dkt. 139 at 3. To that end, the assigned probation officer can tailor substance abuse treatment programming and testing to meet Mr. Pizzola's ongoing needs. Mr. Pizzola has served a lengthy term of incarceration for his offense. On balance, it is in the interests of justice for him to have the opportunity to care for his daughter. The potential of revocation of supervised release and return to the BOP—thereby putting his daughter's future again in peril—will be additional incentive for Mr. Pizzola to stay drug-free. For these reasons, the Court finds that extraordinary and compelling reasons warrant a sentence reduction to time served, that the § 3553(a) factors support a reduction of Mr. Pizzola's sentence to time served, and that his release from his term of imprisonment in this case is consistent with the Sentencing Commission's applicable policy statements.

III. Conclusion Accordingly, the Court lifts its previously imposed stay, dkt. [132] and vacates its prior orders granting Mr. Pizzola's motions for compassionate release, dkts. [129], [130]. For the reasons stated above, the Court GRANTS Mr. Pizzola's motions for compassionate release, dkts. [118], [125], and [138]. The Court ORDERS that Mr. Pizzola's sentence of imprisonment be reduced to time served. The term of supervised release remains 5 years. The terms of supervised release stated in the Judgment imposed on June 30, 2015, dkt. 56, remain in full force and effect."

Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The total number of inmate COVID-related deaths is 317. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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